Philosophical And Constitutional Framework Of Government

Answer : The preamble to Indian constitution declares India as sovereign socialist, secular, democratic, republic. These words show the basic values of constitution of India.

The word sovereign means that both externally and internally, India is a sovereign nation. Socialist means that the people will have equitable share on country’s resources there by securing economic rights for every one. The world ‘secular’ in the preamble implies that
the state would not support any religion out of public funds, nor would it penalize the profession and practice of any religion or the right to manage religious institutions.

Further the democracy implies that the government is popularly elected and the constitution ensures the protection of the fundamental rights of the citizens. The word ‘Republic’ means a government whose head is elected by the people.

Next in the concept are social, political and economic right to the people of this country which are enshrined in the Article 38 of the constitution which says: “The state shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political-shall inform all the institution of national life”. The rule of law under Article 14 states that every person will equal before law and there will not be any kind of discrimination. Thus it is clear that the constitution of India contains all the provisions that shows the basic values essential for the citizens to prosper and develop.

Answer : The statement points towards the Prime Ministerial or parliamentary form of government that India choose instead of the presidential form. In India President is although the executive head of the state and government but his institution is just symbolic.

Under Article 72 of constitution of India it is said that there will be a council of minister to aid and advice the president. This means that the president do not have any discretion and he will have to work according to the advice of COMs. In Britain (Thames) also the monarch has been a symbolic head who work according to the advice of council of ministers but in Washington (U. S. A), there is a presidential form of government where the president is the actual and highest executive authority. The president has the power to appoint ministers, Attorney General of India, Chief justice of India, members of U.P.S.C, chief election commissioner and other election commissioner, finance commission etc. But all the appointments are done according to the advice given by COMs. This is in line with the British model of governance, but in U. S.A the president himself appoints all the higher officials although they should be ratified by the senate.

At the time when the emergency is thrown in the country the president acts on the advice of COMs. There are a few provisions where the president can show his discretion but that’s too is very limited. This shows that in India President is a symbolic institution which is in resemblance to the Thames (river in London) and not with the Potomac (river in Washington).

Answer : India remained under British domination and control for a very long time. During their period of supremacy the Britishers had their own administrative set-up. Of course several administrative changes have been introduced to suit new needs and requirements, altogether has not been wiped out.

There are many areas in which influence of British administrative system on Indian administrative system has been felt. These are: -

1. Federal System: The Britishers were of the view that for running our administration India should be a federation. It was felt that it will be more or less impossible to administratively run a big country like India from one centre. The idea of running administration of federal pattern is the legacy of British rule.
2. Parliamentary system: Again this is the legacy of the British system to India.

Neutrality of civil services: Britishers during their stay in India decided that civil servants in India should be politically neutral. They should honestly serve their masters and keep away and remain above political changes and political movements, which take place in the country. This idea has been accepted by present day India as well.

Answer : The constitution of a country in simple terms, can be said as a collection of the legal rules providing the framework for the government of the country. It reflects the dominant belief and interests or some compromise between conflicting belief and interests . Indian constitution is among the longest in the world.

Our constitution not contented with merely laying down the fundamental principles of governance, as the American constitution does, the authors of the Indian constitution followed and reproduced the Government of India Act, 1935 in providing matters of detailed administration. The vastness of the country, and the peculiar problems to be solved have also contributed towards the bulk of constitution.

Fundamental Rights and the Directive Principle of our constitution place it, in a attractive position among global constitution. Universal franchise, social equality also guaranteed by the constitution.

Answer : Though the constitution describes India as a Union of States, it contains all the essential federal polity such as:

1. Dual Government – existence of central and regional governments, which are independent within their allotted sphere. It is the gist of federal principle.
2. Distribution of Power
3. Authority of Law

The unique feature of our constitution is that, though it has federal features but it is a federation with unitary bias, which is reflected by the following provision:

1. Lack of territorial integrity of states – Article ‘3’ of the constitution empowers parliament to change the boundaries of states even without their consent.
2. Unequal strength of the Rajya Sabha – This is because constituent units were not formed on the principle of equality.
3. Amending Procedure – Most amendments are made by a simple or two-thirds majority. “State ratification” is limited only to a few provisions.
4. Parliamentary Laws –Parliament can enact laws for the states under various conditions such as –(i) National Interest (Art. 249) (ii) During an Emergency (Art. 250) For implementing international treaties (Art. 253). Etc.
5. Emergency provision – Under Art. 352, 356 and 360 the president can proclaim an emergency. During emergency constitution becomes completely unitary.
6. All-India Services.
7. Appointment of Governor.

Thus, Indian federalism is federal in form but unitary in spirit.

Answer : In the Preamble of the Indian Constitution, it has been resolved to constitute India into a Sovereign, Socialist Secular Democratic Republic. The fathers of the Indian Constitution wanted to bring about a socialistic transformation in India through democracy.

The word ‘Socialism’ comes to mean the following:

1. An egalitarian society.
2. Satisfaction of basic needs.
3. Common ownership of vital instruments of production and
4. Ideal of service.

All these, except common ownership, continue to be valid in the present content. Socialism believes in common ownership and control of means of production. Socialists believe that from economic point of view, an industry which is collectively owned will be more efficient and from the moral point of view more satisfying. In practice this proved wrong and the economy had to be open up through the policy of liberalization, privatization and globalisation. The concept of predominant state ownership for economic prosperity has become weak and for that extent, the socialist objective has gained less importance even though the other goal of socialism such as egalitarian society, ideal of service, etc. are very relevant presently.

Answer : Historically, the All India Services as the Secretary of States Services of the Victorian era. The oldest among them was the famous Indian Civil Services (ICS) which owes its origin to the Macaulay Report, 1854. Sardar Patel, the Home Minister in the Interim Government had mooted the proposal to create an all Indian Administrative Service. He valiantly steered it for acceptance through a conference of the provincial premiers in October, 1946 and insisted on its inclusion in the Supreme Constitutional document of the land. The constitution includes provision for creation of new All-India Services.

The question of the All-India Services was considered at the conference of Chief Ministers in July 1948 and by Chief Secretaries in July 1949 and both recommended the creation of number of these services for reasons of administrative efficiency both at centre and in states and for the better co-ordination of their administrative relations. The constitution empowered parliament to create new All India Services. The ARC study Team set up in 1966 has stated that “the need for All-India Services in now greater than in the past to provide a uniform administrative based, an easy communication system and for the development of personnel at the higher level and as an organic administrative link between the three tiers of Government.

Answer : India is a democracy with a Parliamentary system of Government. A public official in a Parliamentary democracy is accountable directly to the political executive and indirectly through him to Parliament and the people. The political minister formulates policy as well as broadly supervises its implementation; the civil servants advise in formulation of the policy and are also responsible for carrying it out.

Change in political executive with change in the fortunes of the political parties in the elections is a normal feature of the political system. Thus from time to time, various parties with different ideologies do come to power. In these circumstances, if the civil service is to serve different masters, it has to maintain a certain degree of neutrality between the different parties and certain anonymity were developed into fine art in the British Civil Service. The system was adopted by India in the British times.

The success of a Political System depends on the implementation of the ideological concepts, philosophical values and social programmes of the government at all levels. The bureaucracy and the political leadership can achieve this goal by working closely and harmoniously. Then joint endeavour can translate the political manifesto of the government into administrative reality.

A Civil Servant’s relationship with politicians, his attitude in dealing with the public and his duty in advising the Ministers in Parliamentary Affairs are of great importance and value. If the administrator fails in any of the duties, the system will decline or become weak. Politicians and administrators are partners in the joint enterprise and are naturally dependent on each other. Without the official element being there, the representative element would be futile and actually ineffective to carry out its ideas and policies. Without the representative element, the official administrator should turn out to be aimless.

Civil service neutrality if it means a lack of commitment to development has no place in a welfare state where social welfare and other developmental programmes have to be implemented by the civil service. Administrators have to guide political executive with regard to development ideologies, instead of serving as a stumbling block in the path of development. This work is no longer that dealing or adhering to bureaucratic rules but to act as active agent to help the state reach humanistic, nationalistic and developmental goals.

It is worthwhile to examine the basic postulates of the minister-civil servant’s relationships in the content of the emerging political scene in the country. It needs no assertion that bureaucracy must be either democratic control not only in form but also in reality. Unstable cabinet cannot have effective control over bureaucracy. Hence it is necessary to strengthen control and if necessary provide alternate institutional arrangements to keep proper balance of relationship of power between minister and bureaucrats.

One must consider at this stage that guiding motive of both the politicians and the civil servants is to service. For the politician, survival means somehow manage to retain power or authority through the process of election and for the civil servant, to maintain his career profile. In the process many a time public interest is sacrificed.

Earlier a bureaucrat exercised his authority to provide efficient administration, redress grievances of the public and rectify the defects noticed in the process of administration. With greater politicization at the implementation, citizens started looking up to the politicians which resulted in diluting the role of bureaucrats.

Crisis of character may have vitiated the relationship between the two to the detriment of the citizen’s welfare. There are cases of collision but the number of collisions has been on the increase during the past few years. A elaborate, exhaustive and empirical enquiry needs to be undertaken to cover the entire gamut of the problem.

Answer : Colonial India ruled by Britisher’s and the experience gained under this regime played dominant role behind the adoption of parliamentary democracy for India. This raised hopes for a stable democratic polity in India. This was certainly the vision of the‘founding fathers’. Under the leadership of Nehru and others, that vision took shape in the form of new political institutions.

The new constitution laid the basis for a British style parliamentary democracy, arrangements were made to keep the armed forces out of politics and the diversities of the Indian people were carefully considered in designing the new federal system.

Further, the political managements in this early phase were clearly dominated by an educated, nationalist elite. The business class was also politically influential and the landed and caste elites were slowly brought into the ruling coalition. The new rulers enjoyed widely perceived legitimacy, in part because of the nationalist legacy and in part because of the traditional pattern of authority in society, such as the caste structure in the villages, were still largely intact. Thus we adopted parliamentary democracy of British type.

It would however, be wrong to assert that we have adopted the British parliamentary system in to. There are several fundamental differences and departures. To name a few, the U.K. constitution still largely unitary, while ours is largely federal. They are a monarchy with a hereditary king while we are a republic with an elected president, unlike the British we have a written constitution and our parliament, therefore, is not sovereign and legislation passed by it is subject to judicial review.

Our constitution makers largely preferred the parliamentary form because they had some experience of operating it and there were advantages in continuing established institutions. After a long struggle for responsible govt. and against arbitrary executive authority, they were naturally allergic to a fixed term irremovable executive. In a highly pluralistic society like India’s size and diversity and with many pulls of various kind, they believed that the parliamentary form was the most suited for accommodating a variety of interests and building a united India.

Answer : Our constitution did not adhere to any particular ‘ism’ but sought to effect a compromise between Individualism and Socialism by eliminating the vices of unbridled private enterprise and interest by social control and welfare measures as far as possible.

This is why a ‘socialistic pattern of society’ not Socialism was declared to be the objective of our planning by Pandit Nehru.

A large no. of Directive Principles, however, aim at the establishment at a welfare state in India committed to the realization of the ideals proclaimed in the preamble of the constitution.

Thus, Article 38 provides that the state shall strive to promote the welfare of the people by securing and protecting a social order in which justice- social, economic and political-shall inform all the institutions of national life. According Article 39, the state shall direct itspolicy towards securing (a) a proper distribution of the material resources of the community for the common good (b) equal pay for equal work for both men and women (c) the protection of the strength and health of workers and avoiding circumstances which forces citizens to enter evocations unsuited to their age or strength.

Answer : Preamble implies a preliminary or introductory statement in speech or writing. The preamble of a statute, which generally follows the long title and precedes the purview, is a prefactory explanation or statement in general terms stating the reason or occasion for making the statute and the object or policy, which it is designed to achieve. The preamble like the long title is a part of statute and is an admissible aid to its construction.

To quote Dyer, C.J., the principle is a “key to open the minds of the makers of the Act, and the mischiefs which they intended to redress.”

The preamble is, however, is of not that importance as the purview or enacting words of a statute. It the enacting words are clear and unambiguous, the preamble cannot affect their meaning but if there is a doubt as to the meaning of the enacting words, the preamble by showing the object or purpose of the Act helps in the selection of the true meaning.

Answer : The first Article of the Draft Constitution of prepared by Sri. B.N. Rau, Constitutional Advisor to the Government of India, provided that ‘India shall be a federation.’ But subsequently the Drafting Committee provided that ‘India shall be a union of states’. This expression was taken from the preamble of the Canadian constitution 1867. Instead of “federation”, the word ‘union’ has been used in the constitution and one of the most controversial questions is the nature of Indian federation.

According to Jennings “Indian Constitution is federal with strong centralisation tendencies”. Wheare calls the Indian Constitution ‘quasi-federal’. Appleby views the Indian Constitution as ‘extremely federal’.

India has a cooperative federation where two sets of Government are not antagonistically independent of each other but coordinate, cooperate and collaborate in each others efforts “to secure to all its citizens, justice, liberty, equality, and fraternity’. Indian constitution is free from evils of rigidity and legalism, normally the attributes of federal policy. Due to absence of rigidity the Indian constitution can be both unitary as well as federal according to the requirements of time and circumstances.

Answer : Indian Constitution is neither purely ‘federal’ nor purely ‘unitary’. The federal form clearly manifests in the constitutional distribution of powers between the union and the states not only in the legislative field but also in executive and administrative fields. In normal times, the constitutional scheme has to ensure autonomy of the states in regard to the spheres of activities earmarked for the states in the constitution. But sometimes it is felt that the sphere of power is unusually tilted towards the union which is why it is said Indian Constitution is not confronting to the conception of a federation.

For smooth functioning of the federal system, the constitution has devised techniques of control over the states by the union. The power to appoint and dismiss the Governors, power to appoint High Court Judges, power of removal of members of the State Public Service Commission vests with the President. The union government exercises effective control over the state through giving necessary directions to them. This power of giving directions is backed up by a coercive sanction for the enforcement of such directions, as laid down in Article 365 of the Constitution.

Also the union has very important power to exercise supervisory control over the states in the maintenance of public order. Strictly speaking maintenance of public order in a state through the agency of police is the responsibility of a state but still union can interfere. There are other provision under which in some particular cases the union can even legislate on state subjects. Also if the state and union both legislate on any subject which is there in concurrent list then the law of union will prevail over that by state.

During emergencies and particularly under Article 356 under which the union can suspend or dismiss the state government, the constitution takes the form of ‘unitary’. During financial emergency under article 360 the union executive has the power to direct the state to observe some specific canons of propriety.

All these provision show the unitary character of Indian constitution while the hard procedure to amend it makes it rigid in nature. Under article 368 the constitution can be amended but the process is so difficult that it gives the rigid outlook to our constitution.

The amendment of the constitution can be initiated only by the introduction of a Bill in either House of Parliament so that the initiative in the matter of constitutional amendment has been exclusively reserved for parliament. Second, for the most part, the provisions of the constitution can be amended by parliament by a special majority, namely, a majority of the total membership and a majority of not less than two-thirds of the members of each house present and voting.

In some cases like those relating to the election of President, executive power of the Union and the States, Judiciary, the list in the Seventh Schedule, representation of the states in parliament, provisions of article 368, the amendment bill after being passed by each house of parliament with prescribed special majority, needs to be ratified by the legislatures of not less than one-half of the states. Third, on a Constitution Amendment Bill, as duly passed/ratified, being presented to the President, the President’s assent is mandatory and, unlike in the case of ordinary legislative Bills, he has no option to withhold his assent or return the Bill to the House for reconsideration.

Lastly, it is significant that none of the provisions of the constitution is unamendable inasmuch as parliament can in any way amend, alter or repeal and provisions of constitution and such amendments can not be questioned in any court of law on any ground whatsoever unless they tend to alter or violate what may be considered as the basic features of the constitution. Thus the above discussed feature not only makes our constitution, more unitary than federal but also gives it a rigid character.

Answer : The constitution of India is a products of lengthy debates, deliberations and discussions.Nearly 75% of the constitution can be said to be a reproduction of the Government of India Act 1935 with suitable adaptations and modifications. Besides this indigenous source, the constituent assembly had before it several models of foreign constitutions.

After much needed debates and keeping in mind the Indian conditions many things were borrowed from foreign constitutions. The concept of Directive Principles of State Policy was taken from Irish Constitution. Parliamentary system with ministerial responsibility to the legislature came from British and provisions making the president the executive head of the state and the supreme commander of armed forces and the vice president as the ex-officio chairman of the council of states were based on the U.S. model. The Bill of Rights enshrined in the U.S. constitution could also be said to have inspired our fundamental rights.

The Canadian constitution inter alia influenced the federal structure and provisions relating to Union-State relations and the distribution of powers between the union and the states. The concurrent list in the Seventh Schedule, provisions regarding trade, commerce and intercourse and parliamentary privileges were modelled, presumably on the Australian Constitution.The emergency provisions were influenced by the constitution of Germany. For understanding the ambit and scope of provisions like those pertaining to the issue of writs and parliamentary privileges one has still to go to the British Constitution.

Although many a times the constituent assembly is being criticized for borrowing heavily from other constitution but if we see the functioning of our constitution in past 57 years then we will come to know the constitutional provisions have adapted to Indian conditions remarkably.